Crossing the CPLR 2215 Cross-Motion Divide in the First Department

“For every motion there is a cross motion.”

Caution: An untimely cross motion may be denied, even if meritorious.

CPLR 3212(a), as amended at the Court systems request in 1996, provides with respect to summary judgment motions that:

If no [date for the making of such a motion] is set by the court, such motion shall be made no later than one hundred and twenty days after the filing of the note of issue, except with leave of court on good cause shown.

And CPLR 2215 provides that:

At least three days prior to the time at which [a summary judgment motion] is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to [CPLR 2214(b), a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers[.]

The two CPLR sections collide when summary judgment is sought by way of cross-motion.

Our point of departure is the seminal opinion of the New York Court of Appeals in Brill v. City of New York, 2 N.Y. 3d 648, 650, 781 N.Y.S.2d 261 (2004).  In Brill, the Court of Appeals addressed “the recurring scenario regarding the timing of summary judgment motions that ignores statutory law, disrupts trial calendars, and undermines the goals of orderliness and efficiency in state court practice.”

The Court of Appeals summarized the prior proceedings:

On June 4, 1998, plaintiffs Ona and Maurice Brill brought suit against the City of New York and others for injuries Ona Brill allegedly suffered on February 15, 1998 when she tripped and fell on a public sidewalk in Brooklyn.  Following discovery, on June 28, 2001, plaintiffs filed their note of issue and certificate of readiness, and sought a preference due to Ona Brill’s age.  Id. at 650.

On June 18, 2002, close to a year after the trial calendar papers were filed, the City moved for summary judgment. The City gave no explanation for filing the motion after the 120–day limit specified in CPLR 3212(a), simply arguing that it did not have prior written notice of the alleged defect at the accident site and that plaintiffs could not show an exception to the prior written notice requirement. Supreme Court determined that in the interests of judicial economy, and since Mrs. Brill did not manifest any prejudice from the delay, it would decide the summary judgment motion on the merits. The court granted the City’s motion, finding plaintiffs did not prove that the City had notice of a defect at the accident site, and the Appellate Division affirmed.  Id.

The Court of Appeals reversed “because, on these facts, Supreme Court should not have considered the merits of the City’s motion for summary judgment.”  Id.

The Court set forth the purpose of the 1996 amendment to CPLR 3212(a):

By the amendment, the Legislature maintained the courts’ considerable discretion to fix a deadline for filing summary judgment motions, after joinder of issue, but mandated that no such deadline could be set earlier than 30 days after filing the note of issue or (unless set by the court) later than 120 days after the filing of the note of issue, except with leave of court on good cause shown. Thus, the Legislature struck a balance, fixing an outside limit on the time for filing summary judgment motions, but allowing courts latitude to set an alternative limit or to consider untimely motions to accommodate genuine need.  Id. at 651.

Noted the post-amendment practice:

Nonetheless, the practice of filing late summary judgment motions persisted, with the statutory “good cause” requirement a new litigation battleground. Some courts concluded that “good cause” required a satisfactory explanation for movant’s delay, and refused to entertain the motion if no such showing was made (see e.g. Carvajal v. M. Madison LLC, 297 A.D.2d 550, 551, 747 N.Y.S.2d 93 [1st Dept.2002]; Hilton v. City of New Rochelle, 298 A.D.2d 360, 360, 751 N.Y.S.2d 392 [2d Dept.2002]; Ripepe v. Crown Equip. Corp., 300 A.D.2d 647, 752 N.Y.S.2d 890 [2d Dept.2002]; Falcone v. Khurana, 294 A.D.2d 535, 536, 742 N.Y.S.2d 871 [2d Dept.2002]; Borelli v. Gegaj, 248 A.D.2d 299, 670 N.Y.S.2d 90 [1st Dept.1998]; DiFusco v. Wal–Mart Discount Cities, 255 A.D.2d 937, 937, 680 N.Y.S.2d 377 [4th Dept.1998]; John v. Bastien, 178 Misc.2d 664, 666–667, 681 N.Y.S.2d 456 [Civ.Ct., Kings County 1998]; see also Luciano v. Apple Maintenance & Servs., 289 A.D.2d 90, 90–91, 734 N.Y.S.2d 153 [1st Dept.2001] [movant’s explanation was an adequate showing of good cause for the delay]). Other courts read “good cause” to permit late filing where the motion had merit and there was no prejudice to the adversary (see e.g. Burns v. Gonzalez, 307 A.D.2d 863, 864–865, 763 N.Y.S.2d 603 [1st Dept.2003]; Lee v. City of New York, 307 A.D.2d 256, 256, 762 N.Y.S.2d 269 [2d Dept.2003]; Simmonds v. Long Is. R.R. Co., 296 A.D.2d 487, 487, 745 N.Y.S.2d 555 [2d Dept.2002]; Garrison v. City of New York, 300 A.D.2d 14, 15, 751 N.Y.S.2d 436 [1st Dept.2002], lv. denied 99 N.Y.2d 510, 760 N.Y.S.2d 102, 790 N.E.2d 276 [2003]; Medina v. Barbaro, 279 A.D.2d 615, 615–616, 720 N.Y.S.2d 165 [2d Dept.2001]).  Id. at 652.

And concluded that:

We conclude that “good cause” in CPLR 3212(a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy. That reading is supported by the language of the statute—only the movant can show good cause—as well as by the purpose of the amendment, to end the practice of eleventh-hour summary judgment motions. No excuse at all, or a perfunctory excuse, cannot be “good cause.”  Id.

Here, it is undisputed that the City did not file its motion within the requisite 120 days specified by the statute, and it did not submit any reason for the delay. Thus, there was no “leave of court on good cause shown,” as required by CPLR 3212(a). The violation is clear. What to do is the more vexing issue.  Id.

Explaining the reason for ruling against the City, the Court of Appeals wrote and admonished:

If this practice is tolerated and condoned, the ameliorative statute is, for all intents and purposes, obliterated. If, on the other hand, the statute is applied as written and intended, an anomaly may result, in that a meritorious summary judgment motion may be denied, burdening the litigants and trial calendar with a case that in fact leaves nothing to try. Indeed, the statute should not “provide a safe haven for frivolous or meritless lawsuits” (Rossi v. Arnot Ogden Med. Ctr., 252 A.D.2d 778, 779, [3d Dept.1998] [Graffeo, J.]), which is precisely why practitioners should move for summary judgment within the prescribed time period or offer a legitimate reason for the delay.  Id. at 653.

As Professor David Siegel—who has tracked this “controversial topic”—has promised, “we’d think better of judicial decisions that absolutely refuse to extend the time for meritorious summary judgment motions if they would tell us what is to happen in the case” (79 Siegel’s Practice Review, Time Limit on Summary Judgment, at 2 [Jan.1999]; see also 51 Siegel’s Practice Review, Strict Time Limit Placed on Motion for Summary Judgment, at 1 [Nov.1996]; Siegel, N.Y. Prac. § 279, at 440 [3d ed.]).  Id.

What is to happen in this case is that summary judgment will be reversed and the case returned to the trial calendar, where a motion to dismiss after plaintiff rests or a request for a directed verdict may dispose of the case during trial. Hopefully, as a result of the courts’ refusal to countenance the statutory violation, there will be fewer, if any, such situations in the future, both because it is now clear that “good cause” means good cause for the delay, and because movants will develop a habit of compliance with the statutory deadlines for summary judgment motions rather than delay until trial looms.  Id.

Several months later, the Court of Appeals reiterated and reinforced Brill in Miceli v. State Farm Mutual Auto Insurance Company, 3 N.Y. 3d 725, 786 N.Y.S. 2d 379 (2004).

In Miceli, the Court admonished that:

Barely five months ago, in Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004], this Court reversed an award of summary judgment for defendant, without considering its merit, on the ground that the motion, made more than 120 days after note of issue was filed, failed to comply with the statutory requirement that “good cause” be shown for the late filing. We determined that, if the merit of the motion itself constituted good cause, the statutory deadline would be circumvented and the practice of delaying such motions until the eve of trial encouraged. As the Legislature clearly specified, summary judgment motions should be timely made, or good cause shown.  Id. at 726.

As we made clear in Brill, and underscore here, statutory time frames—like court-ordered time frames (see Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87, 722 N.E.2d 55 [1999])—are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts, are taken up with deadlines that are simply ignored.  Id. at 726-27.

Plaintiff does not dispute that her motion for summary judgment was made more than 120 days after note of issue was filed, and offers no excuse for her failure to comply with CPLR 3212(a), arguing only that her motion is meritorious. This was precisely defendant’s position before us in Brill. To countenance plaintiff’s position here would require us to overturn our own recent precedent. This we refuse to do, and we therefore reverse the order of the Appellate Division awarding summary judgment to plaintiff, without considering the merit of the motion.  Id. at 727.

In Gaffney v. BFP 300 Madison II, LLC, 18 A.D. 3d 403, 795 N.Y.S. 2d 579 (1st Dept. 2005), the First Department, as follows, affirmed an order granting plaintiff summary judgment in a Labor Law/personal injury suit, notwithstanding that the motion was untimely:

The court providently exercised discretion in considering the summary judgment motion, notwithstanding its untimeliness. Plaintiffs demonstrated “good cause” by explaining that the delay was due, in part, to defendant Turner’s failure to produce a witness for deposition in a timely fashion prior to the filing of note of issue, and by the delay in obtaining a transcript of said deposition (see Kunz v. Gleeson, 9 A.D.3d 480, [2004]).  Id.

The First Department, as follows, created an exception from Brill and Miceli, in Osario v. BRF Construction Corp., 23 A.D. 3d 202, 803 N.Y.S. 2d 525 (1st Dept. 2006):

The motion court properly considered plaintiff’s cross motion for partial summary judgment. Although plaintiff cross-moved after the court’s imposed deadline for summary judgment motions, plaintiff made it in response to defendants’ still pending, timely summary judgment motions (see James v Jamie Towers Hous. Co., 294 AD2d [*2]268, 272 [2002], affd. 99 NY2d 639 [2003]; see also Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 497 [2005]).  Id.

In Altshuler v. Gramatan Management, Inc., 27 A.D. 3d 304, 811 N.Y.S. 2d 379 (1st Dept. 2006), as follows, the First Department tracked Osario:

Consideration of Builtland’s cross motion was not erroneous, even though it was served after the 120–day cutoff (see James v. Jamie Towers Hous. Co., 294 A.D.2d 268, 272, 743 N.Y.S.2d 85 [2002], affd. 99 N.Y.2d 639, 760 N.Y.S.2d 718, 790 N.E.2d 1147 [2003]). That motion was largely based on the same arguments raised in Daffy’s timely motion, and the same findings that mandated judgment for Daffy’s also require judgment.  Id.

Several months later, in Filannino v. Triborough Bridge & Tunnel Authority, 34 A.D. 3d 280, 824, N.Y.S.2d 244 (1st Dept. 2007), the First Department beat a partial retreat from Osario.

The Appellate Division summarized the procedural history of the case:

On July 15, 2005, the parties entered into a stipulation, which was “so ordered” by Supreme Court, that, among other things, required plaintiff to file a note of issue on or before September 30, 2005. Plaintiff chose to file his note of issue on August 4, 2005, thereby placing this matter on the trial calendar and triggering the 120-day period for making summary judgment motions (see CPLR 3212 [a]). On November 29, 2005, three days before the 120-day period expired, defendants moved for partial summary judgment dismissing plaintiff’s causes of action under Labor Law §§ 200 and 241 (6). On December 13, 2005, 11 days after the time to make summary judgment motions had expired, plaintiff cross-moved for summary judgment on the issue of liability on his cause of action under Labor Law § 240 (1). Supreme Court granted certain aspects of defendants’ motion, denied the remainder thereof, and denied plaintiff’s cross motion on the ground that it was untimely. This appeal by plaintiff, from that portion of the order which denied his cross motion, ensued.  Id. at 280-281.

Adverted to both Brill and Miceli:

In the absence of a court order or rule to the contrary, CPLR 3212 (a) requires summary judgment motions to “be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]). Plaintiff, whose cross motion for summary judgment was made after the 120-day period had expired, contends that the cross motion was timely because it was made in response to defendants’ timely motion. Alternatively, plaintiff maintains that good cause exists for his failure to make a timely motion. Neither of these arguments is persuasive.  Id. at 281.

Outlined the circumstances in which a cross-motion served after the end of the 120 day period could be considered:

A cross motion for summary judgment made after the expiration of the statutory 120-day period may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made seeking relief “nearly identical” to that sought by the cross motion (Fahrenholz v Security Mut. Ins. Co., 32 AD3d 1326, 1328 [2006]; Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 497 [2005]; see Altschuler v Gramatan Mgt., Inc., 27 AD3d 304 [2006]). An otherwise untimely cross motion may be made and adjudicated because a court, in the course of deciding the timely motion, may search the record and grant summary judgment to any party without the necessity of a cross motion (CPLR 3212 [b]; see Connors, CPLR 3212 [a]’s Timing Requirement for Summary Judgment Motions, 71 Brook L Rev 1529, 1541-1542 [Summer 2006]). The court’s search of the record, however, is limited to those causes of action or issues that are the subject of the timely motion (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]; Baseball Off. of Commr. v Marsh & McLennan, 295 AD2d 73, 82 [2002]). Here, defendants’ motion was addressed to the causes of action under Labor Law §§ 200 and 241 (6), while plaintiff’s cross motion concerned a different cause of action (i.e., Labor Law § 240) (cf. Osario v BRF Constr. Corp., 23 AD3d 202, 203 [2005] [plaintiff’s cross motion for summary judgment on Labor Law § 240 (1) cause of action made after court’s deadline for making summary judgment motions nevertheless timely because made in response to defendants’ timely motions for summary judgment dismissing Labor Law § 240 (1) cause of action]).  Id. at 281-82.

Rejected plaintiff’s explanation for delay:

Nor is plaintiff persuasive in arguing he proffered a satisfactory explanation for the untimeliness of the cross motion (see Brill v City of New York, supra; see also Perini Corp. v City of New York [Department of Envtl. Protection], 16 AD3d 37 [2005]). Plaintiff asserts that defendants, after repeatedly failing to produce a witness for a deposition, produced the witness on August 4, 2005, the date plaintiff filed his note of issue. The transcript from the deposition was certified by the court reporter on September 10, 2005 and plaintiff received the transcript approximately one month later. Although good cause for a late summary judgment motion can be established where a discovery request relevant to the motion was outstanding until shortly before the motion was made (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124 [2000]; Cooper v Hodge, 13 AD3d 1111 [2004]; see also Kunz v Gleeson, 9 AD3d 480 [2004]), or where the movant was awaiting the receipt of deposition transcripts relevant to the motion (see Burnell v Huneau, 1 AD3d 758 [2003]), the deposition here occurred on the date the note of issue was filed and plaintiff received the transcript approximately eight weeks before the motion deadline. Plaintiff offered no explanation of why he could not have made a timely motion after receiving the transcript. As the Court of Appeals has stated, “[n]o excuse at all, or a perfunctory excuse, cannot be “good cause’ “ (Brill, 2 NY3d at 652).  Id. at 282.

And, distinguishing Gaffney, rejected plaintiff’s argument for a “good cause” exception:

In determining that good cause exists to consider the untimely cross motion, the dissent relies upon Gaffney v BFP 300 Madison II, LLC (18 AD3d 403 [2005], affg 9 Misc 3d 1109[A], 2005 NY Slip Op 51457[U] [Sup Ct, NY County 2005]). In Gaffney, plaintiffs asserted that they were unable to make a timely motion for summary judgment because a defendant failed to produce a witness for a deposition until after the note of issue was filed and the transcript of the deposition, which plaintiffs needed for purposes of consulting with and retaining an expert witness in connection with the motion, was not received by plaintiffs until after the deadline for making summary judgment motions had expired (2005 NY Slip Op 51457[U] at *2).  Supreme Court found that good cause existed to consider the merits of the motion, granted it, and this Court affirmed (18 AD3d 403 [2005]).  Id.

Here, in contrast to Gaffney, plaintiff, who received the deposition transcript several weeks before the deadline for making summary judgment motions, failed to articulate why he was unable to make a timely application for summary judgment. Accordingly, Gaffney neither controls our decision here nor persuasively demonstrates that we should substitute our discretion for that of Supreme Court. Therefore, we decline to disturb Supreme Court’s exercise of its “broad discretion” in determining that no good cause existed to entertain the merits of the cross motion (Fahrenholz v Security Mut. Ins. Co., 32 AD3d at 1328).  Id. at 283.

In Palomo v. 175th Street Realty Corp., 101 A.D. 3d 579, 581, 957 N.Y.S. 2d 49 (1st Dept. 2012), the First Department summarily held that “[t]he merits of [plaintiff’s] untimely cross motion for summary judgment were properly reached [by Supreme Court] to the extent that it [was] based on the same issues raised by [defendant’s summary judgment] motion.

The First Department again addressed the Brill/cross-motion conundrum in Kershaw v. Hospital for Special Surgery, ___ A.D. 3d ___, 2013 Slip. Op. 8548 (1st Dept. 2013), writing at the outset that:

Although raised in the context of a purported “cross motion,” resolution of this appeal requires us to once again revisit the issue of untimely summary judgment motions. As defendant Hospital for Special Surgery concedes, its cross motion was untimely, and it did not allege any good cause for its delay. Accordingly, the cross motion was properly denied, regardless of its merits.  Id. at 2.

The Appellate Division, noted that “[Supreme Court] clearly held that because [defendant’s] cross-motion was filed impermissibly late with no reason offered for the lateness, it should be denied[.]”  Id. at 5-6.

The First Department, as follows, agreed:

It is true that since Brill was decided, this Court has held, on many occasions, that an untimely but correctly labeled cross motion may be considered at least as to the issues that are the same in both it and the motion, without needing to show good cause (see e.g. Palomo v. 175th St. Realty Corp., 101 A.D.3d 579, 957 N.Y.S.2d 49 [1st Dept. 2012]; Conklin v. Triborough Bridge and Tunnel Auth., 49 A.D.3d 320, 855 N.Y.S.2d 54 [1st Dept. 2008]; Filannino v. Triborough Bridge & Tunnnel Auth., 34 A.D.3d 280, 281–282, 824 N.Y.S.2d 244 [1st Dept. 2006], appeal dismissed 9 N.Y.3d 862, 840 N.Y.S.2d 765, 872 N.E.2d 878 [2007]; Osario v. BRF Constr. Corp., 23 A.D.3d 202, 203, 803 N.Y.S.2d 525 [1st Dept. 2005]). Some decisions also reason that because CPLR 3212(b) gives the court the power to search the record and grant summary judgment to any party without the necessity of a cross motion, the court may address an untimely cross motion at least as to the causes of action or issues that are the subject of the timely motion (see Filannino, 34 A.D.3d at 281, 824 N.Y.S.2d 244, citing Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429, 654 N.Y.S.2d 335, 676 N.E.2d 1178 [1996]). The problem in the case at bar is that HSS’s motion, in addition to being untimely, is not a true cross motion.  Id. at 9.

A cross motion is “merely a motion by any party against the party who made the original motion, made returnable at the same time as the original motion” (Patrick M. Connors, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C2215:1; see CPLR 2215). A cross motion offers several advantages to the movant. There is a shorter minimum notice requirement, three or seven days, as compared with the minimum eight-day notice requirement in CPLR 2214(b). The cross movant may rely on the papers submitted with the main motion to support the relief sought. By making a cross motion, the party saves an extra day in court, and quite possibly the time and trouble of amassing fresh proof, if it happens that all or part of the evidentiary foundation on which the cross motion is based has already been produced for consideration (Patrick M. Connors, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C2215:1, 2215:2).  Id.

To the extent HSS’s motion was directed at the complaint, as opposed to any cross claims by HJD, and was not made returnable the same day as the original motion, it was not a cross motion as defined in CPLR 2215. The rule is that a cross motion is an improper vehicle for seeking relief from a nonmoving party (Mango v. Long Is. Jewish–Hillside Med. Ctr., 123 A.D.2d 843, 507 N.Y.S.2d 456 [2d Dept. 1986]). While courts have deemed this mislabeling a “technical” defect which will be disregarded, particularly where the nonmovant does not object and it results in no prejudice to the nonmoving party (see Sheehan v. Marshall, 9 A.D.3d 403, 404, 780 N.Y.S.2d 34 [2d Dept. 2004]), in this case the nature of nonmovant plaintiff’s opposition is that there was prejudice because to the extent the court deems HSS’s motion a cross motion, the Brill rule is ignored.  Id. at 9.

Allowing movants to file untimely, mislabeled “cross motions” without good cause shown for the delay, affords them an unfair and improper advantage. Were the motions properly labeled they would not be judicially considered without an explanation for the delay. Moreover, the exception discussed in Filannino allowing the courts to consider proper but untimely cross motions, at least as to issues shared with the original motion, addresses the dissent’s concern that a cross-moving party might be caused to file its motion late because it had insufficient time before the deadline occurred. Of course, it must be pointed out that the cross-movant would have good cause for its late motion in that situation, and the cross motion would be evaluated on its merits (see e.g. Parker v. LIJMC–Satellite Dialysis Facility, 92 A.D.3d 740, 741–742, 939 N.Y.S.2d 96 [2d Dept. 2012] [failure to receive significant outstanding discovery before the deadline for making motion for summary judgment provides good cause for allowing a late-filed motion for summary judgment]; see also Kase v. H.E.E. Co., 95 A.D.3d 568, 569, 944 N.Y.S.2d 95 [1st Dept. 2012] [court’s clerical error, explained through an affidavit of the paralegal, provided good cause for granting the motion seeking renewal of the motion for summary judgment]).  Id. at 9-10.

Nor is this court’s recent holding in Levinson v. Mollah, 105 A.D.3d 644, 963 N.Y.S.2d 653 [1st Dept. 2013][1] on point. In Levinson we held that there was no reason to address whether one of the “cross motions” was untimely because the moving defendants’ timely motion had put plaintiff on notice that he needed to rebut the prima facie showing that he had not met the serious injury threshold; when the plaintiff in Levinson failed to do this, the complaint was correctly dismissed as to all codefendants. Here, however, because HSS and HJD have different treatment histories with plaintiff, HJD’s timely motion did not clearly put plaintiff on notice of the need to gather evidence in opposition to the arguments ultimately proffered by the HSS defendants.  Id. at 10.

And, earlier this year, in Brill & Meisel v. Brown, ____A.D. 3d ___, 2014 NY Slip. Op. 00180, *1, the First Department, citing Filannino, concluded that ‘[t]he motion court properly considered defendants’ untimely cross motion for summary judgment because they sought dismissal of the same claims on which plaintiff timely sought summary judgment[.]

In the First Department, a meritorious but untimely cross motion for summary judgment  may be denied—unless the CPLR 3212 cross motion addresses the same claims as a timely summary judgment motion.